JUST SHUT UP AND SHOP

...Anyone else presumably includes those who have the effrontery to distribute the Bill of Rights...

...Since the Supreme Court's 1980 opinion, state courts have been grappling with the meaning of their often-overlooked state constitutions...

...In 1946, the Court held that a privately owned company town in Chickasaw, Alabama, could not keep Jehovah's Witnesses from distributing religious literature...

...Gruen's warning came too late...

...End of discussion...

...Erwin Knoll, one of my co-defendants and the Editor of this magazine, calls the shopping center a "stale-air facility...

...He found that the petitioners in the California case "were orderly, and they limited their activity to the common areas of the shopping center...

...As a result, an Ohio corporation can now determine which voices will be heard in a popular Wisconsin gathering place...

...In 1985, outdoor shopping centers and enclosed malls accounted for 60 per cent of all retail sales in the United States...

...This remains the law: There is no First Amendment right to communicate on private property unless Congress expressly permits it (as in labor laws) or unless the property owner exercises the functions of a government (as in the Gulf Shipbuilding Corporation's company town...

...The owners hosted a Junior Miss Pageant, but they sued Friends of the Bill of Rights (as we called ourselves...

...A friend who ventured into a mall after living in Latin America was made physically ill by the crush of consumer hustles...

...The best evidence that malls can be fertile ground for the exercise of free speech comes from the Reverend Charles Gom-pertz...

...See the Editor's Memo on Page 4 of this issue...

...By all accounts—from sociologists, economists, journalists, and mall developers themselves—the modern enclosed shopping center has replaced Main Street and the village square as the primary gathering spot for people who live in mid-sized cities and metropolitan suburbs...

...The answers have been mixed, both in terms of the results achieved and the intellectual honesty displayed in achieving them...

...To the woman who wanted to read my leaflet, we were neighbors disseminating a message in today's version of the village square...

...Constitution, the Bill of Rights...

...it would merely recoup some of the public space that the commonweal lost when the shopping centers displaced government in the first place...

...The company eventually sued me and four others for passing out copies of the Bill of Rights...

...By 1972, Fortune observed that malls were "seizing the role once held by the central business district...

...It gratifies conservatives, as well, because it enables the states to reclaim power "usurped" by the Federal Government...

...On the positive side, they are wonderful places to observe the human character—particularly the antics of courting teens and the power struggles between parents and young children...

...If the shopping-mall controversies are really about federalism, they are also essentially about the role of property in a society that values open debate...

...Indeed, since 1970 state high courts have issued more than 350 decisions affording individuals greater protection under their state constitutions than was ensured by the U.S...

...abridging the freedom of speech," the Wisconsin constitution asserts that "Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech...

...The weather lies outside it all...

...Keenen Peck is a civil-liberties activist, a member of The Progressive's Editorial Advisory Board, and editor-in-chief of the Wisconsin Law Review...

...Victor Gruen, the architect who designed the first totally enclosed mall in 1956, thought shopping centers "can provide the needed place and opportunity for participation in modern community life that the ancient Greek agora, the medieval market place, and our town square provided in the past...

...Protecting free speech would not threaten the institution of private property...

...A bit of noise in the mall, or even a few scraps of litter, is a small price...

...At the East Towne Mall in Madison, Wisconsin, the owners allowed military recruiters to set up displays of firepower, but they sued Nu Parable, the group that wanted to perform a brief dance against nuclear war...

...The malls, with such names as Galleria, Woodfield, Northgate, Hilldale, and Southdale—Garrison Keillor used to joke about a fictional Chippendale and Mon-dale in Minneapolis—are increasingly the places where many of us hang out, especially the young and the old...

...Patrons of East Towne Mall can be told that they must leave one of their constitutional rights in the car...

...East Towne Mall began to be what its managers had promised when they built the shopping center in 1971—"a focal point of civic activity...

...Friends of the Bill of Rights distributed leaflets on about a dozen occasions at East Towne Mall in Madison, and no shopper complained about our presence...

...A shopping center, notes mall consultant Edgar Lion, "has become, or tends to turn into, a local 'downtown' region, a community meeting and activities place, a recreational area, or 'the place for people to be away from home'—where they can shop, eat, be entertained, meet their friends, neighbors, and business contacts, and engage in activities such as community affairs...

...And finally, lawyers are less likely to press state constitutional claims because they rarely can recover attorneys' fees in state cases...

...Ignatius did their preaching...

...Owners of private property can engage in censorship if they wish...

...Does a state constitution's free-speech clause give more protection than the First Amendment to the U.S...

...This is where the church belongs, in the center of things, not stuck off on a quiet residential street...

...The mall owners have built highly profitable private village squares, destroying the public's village squares in the process...

...The 1980s will be the decade of the state courts," she has predicted...

...But my state's supreme court has ruled that this place where life is is no place for the Bill of Rights...

...I think the zealots have made the airports more interesting...

...They should be required to repay the people...

...Should a state court affirm a right—the right to speak on private property—that the U.S...

...Supreme Court Justice William Brennan Jr., a liberal who sees the conservative handwriting on the wall, says "rediscovery" of state constitutional protection "is probably the most important development in constitutional jurisprudence of our times...

...In 1968, the Court extended its reasoning and held that a labor union could picket outside a nonunion supermarket in a shopping center because the center's roadways and sidewalks "are the functional equivalent of the streets and sidewalks of a normal municipal business district...

...Where the First Amendment provides that "Congress shall make no law...

...The woman turned to face the guard and asked, "Isn't this America...

...Supreme Court is less and less likely to champion the Federal rights of free-speech proponents, criminal defendants, and the poor...

...In North Carolina, for example, the state's highest court simply dismissed the opportunity to expand on the First Amendment by declaring, "We are not so disposed...

...No sunsets fall, no moons arise in the shopping mall," said the poet Richard Lyons...

...Passersby knew they could ignore us and toss our handbills into the trash bin...

...As the middle class fled to the suburbs in increasing numbers, regional malls came to dominate the physical and social landscape...

...There are some 3,000 giant enclosed malls in this country, and another 20,000 or so shopping centers of various kinds...

...U.S...

...For us and advocates of other poorly financed causes, the mall offered an opportunity to reach fellow citizens at low cost...

...This is where Jesus and St...

...First, it means that a person in one state may enjoy fewer rights than a person in another state...

...One year later, U.S...

...These are the kinds of questions that have figured in litigation in about a dozen states...

...To the corporate owners, we were nothing more than trespassers in their shopping center...

...After all, you spend most of your lives in and around the marketplace...

...The North Carolina malls are off limits...

...In an opinion by Justice—now Chief Justice—William Rehn-quist, the Court ruled that individual states may protect free speech on private property under their own state constitutions...

...In 1976, the Court concluded that the First Amendment restrains only the government, and not private-property owners, from interfering with the exercise of free speech...

...The U.S...

...Constitution...

...As the dissenting Wisconsin justices pointed out, however, such an interpretation does not take account of the differences between the First Amendment and its Wisconsin equivalent (which was adopted in 1848 after the drafters of the state constitution rejected the language of the First Amendment as inadequate...

...News & World Report commented that "the mall is replacing the old corner drugstore, the city park, and Main Street as the core of community 'belonging' in America...

...Supreme Court does not recognize...

...She recognizes that the shopping-mall dispute is just one part of a larger struggle to embolden state appellate courts at a time when the U.S...

...Third, state judges are more susceptible to political pressure than life-tenured Federal judges (as was demonstrated by the ouster of California's liberal state supreme court justices...

...Just a few weeks ago, more than three years after we first distributed copies of the Bill of Rights at East Towne, the Wisconsin Supreme Court ruled that the mall's proprietors could exclude Nu Parable or anyone else who set foot on their property to disseminate a message rather than to shop...

...The high courts in a handful of states-including New York, Michigan, and Connecticut—agree with the position taken by the Wisconsin court...

...his instructions, issued by a corporation headquartered in Ohio, were to tolerate no distribution of leaflets...

...In Wisconsin, the state supreme court decided that the state constitution's free-speech provision unambiguously restrains government only...

...Supreme Court has waffled a great deal on the subject of free-speech rights on private property...

...The company's claim that it could impose an absolute ban on all forms of public discourse in its shopping center offended our civil-liberties sensibilities, so we prepared a handbill reminding the mall's owners and visitors that freedom of speech is essential to democracy and, we thought, protected by law...

...Second, it may encourage the Federal judiciary to become even less protective of rights, lulling it into believing that the states are handling such matters...

...Only the mall management raised the specter that shoppers were so sensitive that they would flee the premises if they were handed a leaflet...

...Ignatius became the first tenant of the Pacheco Plaza shopping center in Marin County, California...

...The disciples of Lyndon LaRouche and the boosters of Krishna Consciousness have made national names (such as they are) in the corridors of airport terminals, which are far more sterile than malls...

...Though the Gulf Shipbuilding Corporation owned the streets, it had opened them for use by the public, the Court reasoned, and therefore had to abide by the First Amendment...

...Nonetheless, judicial federalism has its troublesome aspects...

...Today, like it or not, these climate-controlled complexes are marketplaces of ideas as well as merchandise...

...Constitution when it found that the California constitution authorized free speech in shopping centers...

...Our small skirmish, we soon discovered, was part of a much larger struggle being waged in the nation's courts—a conflict over the importance of free speech, over the relationship between the states and the Federal Government, and ultimately over the place of private property in a free society...

...In fact, many shoppers expressed appreciation for our efforts to disseminate the Bill of Rights...

...In some other states-including California, Washington, and Massachusetts—the courts have ruled in favor of free speech in shopping malls...

...In the mid-1960s, his Episcopal Church of St...

...As the U.S...

...An animal-rights group protested sales of fur coats, an anti-abortion group urged Christians to join the "Army of God," and a Nicaraguan-support group gathered signatures on petitions opposing aid to the contras...

...This type of federalism pleases liberals because it may compensate for the U.S...

...The majority reasoned that the pacifist leaflets had nothing to do with the purpose of the property at issue...

...In 1972, however, the new Burger Court refused to let antiwar activists pass out leaflets in a shopping center...

...At Pacheco Plaza," he explained, "we will have a Safeway Store and Herbert's Sherbet Shop-not quite as colorful as the village marketplace, but nonetheless our American version of the same thing...

...If the state can see to it, in the name of public health, that shopping centers keep their eating areas clean, why can't it make sure, in the name of democracy, that free speech be protected in the malls...

...Rehnquist noted that under California's court decision, the mall "may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions...

...On the negative side, the atmosphere in most malls is artificial and oppressively stilling...

...But in 1980, the Supreme Court added still another wrinkle...

...The only question is whether the ideas purveyed in the malls will be subject to approval by the mall proprietors...

...But then a majority of the Wisconsin Supreme Court ruled that private-property rights trump free-speech rights...

...Supreme Court stated in the 1946 company-town case, "Ownership does not always mean absolute dominion...

...In effect, the court outlawed the exercise of free speech in the very places where speech is most likely to be heard...

...Constitution...

...Thus, the scope of your civil liberties depends on where you live—a situation that might surprise those who ratified the Fourteenth Amendment, with its guarantee of "equal protection of the laws...

...Supreme Court's backsliding in the protection of rights...

...We didn't go to East Towne Mall looking for a fight, and it wasn't our idea of the most pleasant place to spend a sunny Saturday afternoon...

...Before he died in 1980, Gruen had second thoughts, warning against mall "monocultures" and "functional ghettos...

...By 1968, Time magazine found that "shopping centers have become the focus not only of retailing activity but of much community culture and recreational life...

...The [Wisconsin] constitutional text," wrote Justice Shirley Abrahamson in her dissent, "appears to provide an affirmative right to free speech valid by its own terms against all the world, not just the state...

...Abrahamson is a leading advocate of using state constitutions to protect rights...

...But the guard was unimpressed...

...Indeed, it was Madison, Wisconsin...

...Specifically, the Court held that the California Supreme Court did not violate the U.S...

...Still, the shopping center can be an ideal place to share ideas...

...But the mall's owners had recently sought a court injunction to prevent Nu Parable, an anti-nuclear dance troupe, from performing there...

...The malls are crowded with things and empty of spirit...

...The offending leaflet contained the full text of the first ten amendments to the U.S...

...Paul and St...

...It turned out we were wrong about the latter point...

...This is where life is...

...Once Nu Parable and Friends of the Bill of Rights had "breached" the mall, other groups began to bring their politics inside...

...Federal but not state laws award fees to the winning side in civil-rights cases...

...Iconfess to a love/hate attitude toward shopping malls...